Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Monday, 2 January 2012

The AmeriKat nestling in for an
intellectual evening of Top 10 of 2011
programming

The AmeriKat currently finds herself nestled on a couch in foggy New England watching and reading all the end-of-the year reviews streaming through the television and punctuating her reading periodicals. She has seen 2011’s countdowns of Top 10 weddings, songs, news stories and most fascinating people – lists topped by Kate/William, Adele’s “Rolling in the Deep”, the killing of Osama bin Laden, and Steve Jobs respectively. While listening to Rolling Stone’s Top Songs of 2011 on Spotify, she has had an opportunity to look at this weblog’s year in review.

In the course of 2011 the IPKat received around 800,000 views from 325,000 individual visitors from over 200 countries (compared to 100,000 fewer views and visitors in 2010) –- not counting the Kat's 6,200-plus subscribers. The past year was full of events and milestones in the field of intellectual property, but what were the Kat’s readers' top stories of 2011? The AmeriKat analyzed the Kat's analytics and has compiled a list of the Kat's most-read stories of 2011 for your viewing pleasure; she has listed them bottom-upwards, starting with the tenth most-read story and culminating with the top one. Happy 2012!

10. Lucasfilms v Ainsworth

A replica Stormtrooper helmet,
perfect for braving the New England
winters

The Star Wars litigation saga involving copyright protection in the Imperial Stormtrooper helmet started its days in California with a 2006 default judgment in favour of Lucasfilms against the British resident defendant Mr Ainsworth and “ended” with the UK Supreme Court ruling against Lucasfilms in respect of copyright protection under UK law. In July, the Court unsurprisingly held that the helmet could not be protected as an “artistic work” under UK law, but the most significant part of the judgment was the Supreme Court’s positive comments on the justiciability of foreign copyright claims in the UK courts in circumstances when the defendant is resident in the UK. Whether the floodgates were opened by the judgment, the AmeriKat and IPKat are skeptical, but some commentators say “watch this space”….

Number 9's story concerned Halliburton’s patent application for an invention concerning an improvement of the design of roller cone drill bits for drilling oil wells -- you know, roller cone drill bits... The application claimed methods of stimulating drill bit performance which used a computer simulation to reduce or eliminate extensive field testing. The application was refused by the UK’s IPO which ruled it was excluded as a mental act, mathematical method and as a computer program under section 1(2) of the Patents Act 1977. His Honour Judge Birss QC, sitting in the High Court, allowed the appeal holding that the computer program exclusion and the mathematical method did not apply, and favouring the narrower construction for determining whether claims fall foul of the mental act exclusion. It was the judge’s closing quote – "as a matter of law computer implemented inventions are just as patentable in the UK as in the EPO" – that was the cause of the Kat’s readers’ fevered interest in this October story and to which the 26 comments on the post relates.

Also in October the Court of Justice for the European Union issued its decision in a case involving a dispute between scientist Oliver Brüstle and Greenpeace about the patentability of Brüstle's German Patent DE ‘864 which claimed the use of certain stem cells for treatment of neural deficiencies such as Parkinson’s or MS. The stem cells were obtained at the blastocyst stage: when an embryo has developed to the point of having two different cell components, usually around 5-6 days after fertlization in humans. Greenpeace filed for nullity of Brüstle'spatent, arguing the patent was against ordre public or morality (Article 6 of Directive 98/44/EC). The question was whether such stem cells would be classified as “human embryos” and thus excluded under Article 6.

The CJEU gave guidance as to the definitional ambit of “human embryo”. A “human embryo” includes any human ovum after fertilization, any non-fertilized human into which the cell nucleus from a mature human cell has been transplanted and any non-fertilized human ovum whose division and further development have been stimulated by parthenogenesis, i.e. if a cell(s) is not capable of subsequent development into a human being it is not a “human embryo” . However, the Court declined to rule on whether pluripotent stem cells obtained at the blastocyst stage were “human embryos”. Instead the CJEU held that it was a question for the referring court to ascertain whether pluripotent stem cells obtained from a human embryo at the blastocyst stage were capable of commencing the process of development of a human being and thus excluded under the definition of “human embryo”. Although the usual concerns about the CJEU meddling in moral and definitional matters that should be left to Member States were raised, it was the Court’s decision on the second referred question which held that there should be no distinction between the use of embryos for scientific research and use for purely commercial processes that caused the most comments on the Kat’s posting. The controversial decision is also subject to UCL IBIL’s February event with an excellent panel of speakers including the IPKat's friend Dr. Justin Turner QC.

In the cold months of January, the Kat reported on a trade mark dispute between the Bavarian Castle Department and the BSGE, a network of manufacturers and retailers from the “souvenir, sports clubs, trophy and festive items industry” which seemingly warmed readers' interest. The case involved the Bavarian Castle Department's trade mark registration of the word mark NEUSCHWANSTEIN for a broad range of goods and services in the souvenir and general tourist bric-a-brac classes. BSGE objected to the registration because the castle was a national monument and not a trade mark or a brand as such. The Bavarian Castle Department argued that the registration enabled them to protect the castle from exploitation, however, the German Patent and Trade Mark Office (DPMA) invalidated the registration. The Castle Department appealed the decision to the German Federal Patent Court which upheld the DPMA’s decision, holding that the mark was descriptive and that cultural landmarks, such as Neuschwanstein, are of such integral importance to national and international heritage they cannot be monopolized through trade mark laws. The AmeriKat wonders if the reason this post received so many viewers was a result of the 1.3 million annual visitors to Neuschwanstein conducting pre-visit internet searches...

The case at number 6 involved a number of newspaper publishers and the Newspaper Licensing Agency, which sought a declaration that the Public Relations Consultants Association Limited and its members required copyright licences in order to receive and use copies of claimant’s newspaper content contained in electronic media monitoring service reports from Meltwater. Meltwater monitors media websites’ content and compiles email reports that contain the headline, opening text and extract from articles which matched users' search terms. The Court of Appeal in July affirmed Mrs Justice Proudman’s ruling that headlines involved sufficient skill, labour and judgment to be capable of being protected as literary works and that many of the extracts were expressions of “the intellectual creation of the author of the article as a whole”, and were thus infringed by the service reports. Copyright infringement took place when customers of the service viewed the reports and copies of the headline and extracts were made on their computer. There was no defence available to the defendants because the sole reason the extracts were copied was for the user to see if the items were of any further use or not, not for any of the purposes permitted under the Copyright Designs and Patents Act (“CDPA”) 1988. However, the case was not without its critics. In an equally well-read post, Professor Lionel Bently staunchly criticized the “disappointing” Court of Appeal decision as indicative of a court which does not understand intellectual property issues.

Meltwater in hot water over business model (published on 27 July 2011) (here)

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